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Introduction: Demystifying myths about constitution through the Marxist position on the state in general and the constitution in particular


Itikadi is about socialism, theory, and practice. That is why it is deliberately dedicated to demystifying the myths about history and society that for many years have been created and disseminated by the reactionary classes of exploiters and oppressors of Kenya and the World, consciously and unconsciously. The myths have been perpetuated to hoodwink the masses and distort the struggle for their liberation to conserve systems of exploitation and oppression of one class by another and person by person.


The myth about the state and constitution


Lenin (Lenin,1975: 200; Lenin, 238 - 327) explained that no other concept has been deliberately mystified by bourgeoisie intellectuals and other previous reactionary classes and made to be misunderstood by whole societies than that of the state. Despite the practical reality that confronts them every day in the struggle against capital and myriad of existing forms of exploitation and oppression, the Kenyan masses too hardly comprehend the true meaning and nature of the state and assume that it is created for their welfare and that of every citizen in the country. They believe or have been made to believe that the state is always neutral and above classes and that if the constitution and the laws thereof were implemented equitably, justly, and objectively then all Kenyans would be liberated from the existing injustices without prejudice. The same lies are currently being peddled by the reactionary regime in power led by President Uhuru Kenyatta and ODM leader Raila Odinga that the illegal and reactionary constitutional amendments made by the Building Bridges Initiative (BBI) brought by their handshakes will be the panacea of Kenya's political, economic, social, nationality and cultural problems, even while the neocolonial capitalist system dominates in the country. 


The Constitution is even more mystical


For the constitution is even more mystical to the masses than any other instrument of the state. An embodiment of democracy - itself part and parcel of the form of the state (Marx, 1967; Lenin, ibid.,) - constitutions are made to seem as institutions, organs, or symbols of unity and creations of nation-states that form the cohesion of all citizens irrespective of their classes. Constitutions that are, among other things, the mother of all laws of a nation promise to provide justice and the rule of law to all citizens equitably, equally, objectively, and without discrimination or favour. Like the ongoing debacle - of the so-called (BBI) - constitutional amendments, constitutions are made to seem to be above classes and to promise to solve the nationality question. Yet, the truth is that as long as the nation is divided into classes of the few and the majority, the oppressors and the oppressed, the rich and the poor, there will never be national unity for wherever there are classes, inevitably, there will be class struggles (Lenin,1975: 16 - 48., Marx, K:1990)


The Marxist theory of the state (Lenin, ibid.)


Now, since Marxism is about the liberation of human beings and society from all forms of exploitation, oppression, myths, lies, ideologies, systems, and all that hinder the freedom, progress, and development of individuals and societies, it has always struggled to demystify the incessant myths created by the bourgeoisie and previous reactionary classes about the state, that are imbued to whole societies. It is for these reasons that in analysing the prospects and problems of the Constitution of Kenya 2010 after ten years since its promulgation and the false promises of BBI for the future, I begin by briefly discussing the Marxist Leninist theory of the state in general and that of the constitution in particular to advance the current debate beyond the populist propaganda and platitudes repeated in the country every day.


Marxism Leninism expounds the truth that the government, army, police, prisons, judiciary, constitutions, and laws therein, are part and parcel of the coercive instruments of the state. The state is a machine of oppression and exploitation of one class by another. The state has never been neutral or served the interests of all classes at the same time in a country divided into classes but instead, it has always been the machine of maintaining - by force - the interests of the ruling classes. In fact, the state arose when private property and classes arose, for whenever and wherever there is private property there will be classes, and whenever and wherever there are classes there will always be class struggles. The state was necessary at the stage when private property and classes emerged for deliberately and systematically sustaining the exploitation and oppression of one class upon another. 


Constitutions may be used to hide this fact and pretend to be neutral and to be made to seem to serve the interests of all people in society, yet ultimately, they are part and parcel of the coercive instruments of the state of ensuring the domination of one class over the other (Marx:1967). It is therefore an indisputable fact that constitutions and bourgeoisie democracy are used to neutralise class struggles by pretending or promising to belong to all classes at the same time as objective and neutral institutions of providing justice and participation to all. 


Constitutions are made to make the exploited and oppressed believe that their salvation will be brought about by a good and progressive constitution irrespective of the class nature of their society or nation. But the bitter fact is that whichever class controls political and economic power uses the constitution to serve its interests, to perpetuate its political and economic domination over other classes. Furthermore, the ruling classes will always interpret the constitution of any country or society to serve their interests however democratic or progressive or reactionary that constitution is. What is true in general in this regard is also true to Kenya in particular as history and practical everyday concrete experience continue to reveal.

The 2010 Kenyan constitution has not removed class struggles in the country. On the contrary, class struggles that take diverse forms are part and parcel of the life of the country have been defined and continue. The numerous workers' strikes, peasant's struggles for land and better prices for their produce, students' riots, and the uprising of the poor in urban and rural areas - are all manifestations of the ongoing class struggles in Kenya.


History of the state and constitution in Kenya


When British colonialism started invading and colonising our country in about 1885, Kenyans in the interior of the country composed of diverse ethnic groups, were at various stages of human society that I describe as mature communalism to distinguish them from primitive communalism. Nyerere refers to this mode or historical stage of human development as ujamaa or family hood (Nyerere,1974 & 1968).


Primitive communalism


During primitive communalism, human beings were almost totally dependent on nature for survival, having hardly produced any culture (Engels:1989, Popov:1984). At that stage, there was complete equality among the existing social groups. All participated in hunting or gathering for their needs or survival that were limited. The labour of men and women, young and old were all necessary and equally required for the survival of individuals, families, and clans that eked their living directly from nature using primitive tools that needed the absolute participation of all. As a consequence of this, all that was produced was shared equally and there was equality in society without any form of exploitation of person by person. In the classless primitive communalist societies, there was no state as the need for it had not arisen since there was no private property. Private property is that property that is made and increased by exploiting the labour of other persons that are deprived of access to the means of production.


Mature communalism


In the mature communalist societies, like most of those in the interior of Kenya before the advent of colonialism, the people were living in large clans of ethnic groups and had developed high material and intellectual cultures, differing from place to place (Nyerere, ibid., Achebe, 1967 & 1964 and Odinga:1974). The productive forces were at an advanced stage compared to that of communalism. The developed productive forces allowed the accumulation of surplus agricultural and livestock production that led to the division of labour in the societies. But although there was the division of labour and there were persons that were richer than others and different gender and age roles, still there was no class inequality as the basic means of production - land - was still owned in common. Thus, there was no private property which is the basis of class division and the system of exploitation of person by person. 


So, when colonialism arrived in the interior of Kenya the vast majority of Kenyan ethnic groups had no states as they were classless societies with the basic means of production, land, communally owned. There was no standing army, police, prison, government bureaucracy, or constitution. All this came with colonialism. The societies were governed by communal democracy led by elders and that involved the participation of all in society. Societies were held together by family values, customs, traditional beliefs based on communalism ethics inherited and passed on from generation to generation.


Semi-feudal societies


However, before the arrival of the Arab and Portuguese on the coast of Kenya starting from the twelfth Century, there were already slave/feudal societies that existed side by side with mature communalist societies (Abdulaziz, Mulokozi M.M: 1982). There were Mombasa, Malindi, and Lamu nation-states that were powerful enough to resist and fight Arab and Portuguese invasions for many years. The nation-states had higher material and intellectual cultures than the mature communalist societies at the interior of the country. The nation-states were always at war with one another with each trying to dominate others.


The societies of Mombasa, Malindi, Lamu, and Pate were class societies. There were slave owners and slaves, feudal lords and peasants/serfs, and mature communalism societies dominated by the states that existed to sustain the system of exploitation of person by person. Islamic feudalism (Mulokozi, ibid.) that came to dominate the Eastern African coast completed the structure of the societies that were perpetuated by the state.


The colonial state


The state and its instruments of terror and coercion in most of the interior of Kenya came with British colonialism (Odinga,ibid., see also Achebe, ibid, in the case of Nigeria, Cabral A, 1980, in the case of Guinea Bissau). It was used to establish and impose British colonialism in the country that was resisted by the various Kenyan ethnic groups but eventually succeeded in 1920. The colonial constitution was part and parcel of the colonial state machine that was used to establish and maintain - by force - British colonialism in Kenya. Since constitutions are the mother of all laws, the colonial constitution was the source or mother of all colonial laws that were used to violently impose and maintain colonial rule and system in the country. The colonial constitution and the laws derived from it were part and parcel of the colonial machine of exploitation and oppression of Kenyans by the government and Kingdom of England. 


The colonial regime used the constitution to legitimise the colonial rule. It was the constitution of the colonialists of establishing colonial rule in Kenya and of exploiting and oppressing Kenyans in their own country. The colonial laws drawn from the constitution made by the colonial parliament through colonial democracy that excluded indigenous Kenyans legitimised discriminations and racism against Kenyans and allowed the humiliations of the Africans by the Whites. Through the constitution and other instruments of the state, Kenyans were robbed of their dignity as human beings, land, and property by the colonial settlers and government. The colonial constitution established colonial dictatorship and terror in the country. Treason, sedition, and allied laws were made to deny Kenyans democracy and to violate their human rights and political liberties. Thus, Kenyans were denied freedoms of assembly, association, speech, movement, and participation. Colonial democracy in Kenya was for the White settlers and colonialists and the parliament was of the White people for the White people and for making laws and policies for the White people to maintain the British colonial system. Kenyans were denied the right to vote and participate in parliament until when they were close to achieving national Independence.


All forms of the national liberation struggle, including the war led by the Land and Freedom Army (Mau Mau), were also struggles against the British colonial state and constitution in Kenya (Odinga, O, ibid.).


The neo-colonial state


However, it was the same state and system that the Kenyatta regime composed of the sons of colonial chiefs, home guards, collaborators, former civil servants of the colonial state that was inherited almost intact by the Kenyatta regime.


During the Kenyatta and successive regimes, the constitution was amended many times but this was always done not in the interest of progressive reforms but to seal the loopholes that would allow the majority of Kenyans more democracy, political liberties, and human rights. It was amended to entrench the capitalist system and dictatorship and exploitation of person by person in Kenya.


The struggle for democratic reforms


For example, when in 1982 it became clear that Kenyan patriots, human rights, and democracy activists were determined to use the constitution to demand the restoration of multiparty democracy in the country, the Moi KANU regime that was then in power rapidly used parliament at the end of July to introduce article 2A in the constitution to make Kenya a defacto one political party state. Political parties were disallowed by the constitution except the then ruling Kenya African National Union (KANU). It was criminal to form or advocate for multipartism. This was immediately followed by the attempted coup launched by young officers of the then Kenya Airforce on 1st August, 1982.


The persecution of patriots


The Moi KANU regime used the attempted coup as an excuse to brutally crack on the multiparty advocates, progressive organisations, and individuals, and all it deemed as its opponents. Hundreds of patriots and agitators for democracy and human rights advocates including workers, peasants, students, lecturers, business persons, etc. were rounded up, arrested, tortured, brought before Moi's kangaroo courts to be tried, detained with and without trial, and imprisoned by the kangaroo courts. Many were removed from employment while students were expelled from their educational institutions. Others were forced to flee into exile. The constitution and its laws and judiciary system were used to justify and conduct this repression and persecution against citizens. The constitution was also used to hang to death leaders of the attempted coup and hundreds of sons of the poor, peasants, and workers at Kamiti Maximum Prison.


The 2010 constitution came through a hard struggle


Thus the 2010 constitution was achieved through long, hard, and protracted struggles and sacrifices of Kenyan patriots, democracy, and progressive forces. As political parties were banned by the constitution and its laws, those like December Twelfth Movement and Mwakenya who fought for multipartism had to operate from the underground and in exile. Actually, in the 1980s many underground political parties, which besides agitating for multipartism also advocated for socialism, were formed in the country and exile. After years of struggle and mobilisation during which time Moi's dictatorship escalated arresting, torturing, and persecuting, progressive citizens including religious leaders, business persons, and people of his class, the demand for multipartism became a mass struggle with thousands of people joining demonstration demanding the end of dictatorship in the streets of urban areas and rural towns. Hundreds were killed by the Moi regime. Ultimately, the Moi KANU regime was forced by the relentless broad mass struggles to remove section 2A from the then constitution to pave way for multiparty democracy in 1992. 


The struggle continued


But the coming in of multipartism did not mean the end of dictatorship in the country. Neither was it the defeat of the reactionary Moi political system. The Moi KANU regime still held on the instruments of state power, imposing its neocolonial capitalist system upon Kenyans which was characterised by state-sponsored interethnic violence, corruption, and gross violations of human rights that claimed hundreds of lives. The regime refused to listen to the call by the broad popular democratic forces for constitutional reforms to entrench multipartism. However, the mass struggles inspired by the gains already made proved to be unstoppable. Ultimately, the Moi KANU regime was defeated in the 2002 elections by the National Rainbow Coalition (NARC) of the united opposition that made Mwai Kibaki President of the country.


The 'second liberation'


The defeat of the Moi KANU regime from power was hailed as the second liberation of Kenya. This was because the reforms that came about after decades of hard protracted struggles since independence from classical British colonialism ended the post-colonial dictatorship that was akin to fascism.


The Kibaki NARC regime came about with more political liberties including the start of the culture of multipartism and the observance of human rights, including ending the practice of the death penalty. Kenyans breathed better air of freedom than ever before. But despite its pretence to the contrary, the regime too was reluctant to implement the desire of Kenyans for progressive constitutional reforms. The Kibaki NARC regime resisted the constitutional reforms needed to entrench multiparty democracy in the country. It had to take another eight years of hard struggles of the popular democratic forces before the constitutional reforms were ultimately achieved and promulgated in 2010.


Thus the 2010 constitution was achieved through the hard protracted struggle of Kenyans from below. It passed through the most consultative and participatory process in the history of constitutional making in the continent. It was debated by peasants, workers, and the entire nation at the grassroots. As a consequence, it is hailed as one of the most progressive constitutions in Africa.


Yet it is a bourgeoisie constitution


However, despite all this, the 2010 constitution of Kenya is a bourgeoisie constitution (Marx, ibid., Engels, ibid.) in form and content and its prospects and problems should be appreciated as such. The drafters of the constitution were petit-bourgeoisie elites informed not by revolutionary ideas expressed and recorded by the popular masses from the grassroots but bourgeoisie ideas from above. The final product that forms the 2010 constitution came from the petit-bourgeoisie elites interpretation and drafting of the wishes and aspirations of the masses of Kenyans expressed during the comprehensive consultative process and the Bomas Constitutional Conference of 2005. The people's views were revolutionary but the drafters watered them down to accommodate their petit-bourgeoisie position and the fears of the Kenyan neo-colonial elites who were then in power and who had earlier abandoned the Bomas popular draft constitution.  


I say all this because I participated actively in the Boma's Conference as delegate number 131 and I know from first hand about the class struggles that manifested themselves in the course of the debates and process that culminated with members of the then Kibaki government walking out of the Bomas Conference and thus making it to end prematurely - in fact, many defects in the constitution could be tressed to this. The 2010 constitution drafted by the late Nzamba Kitonga and his team of elites inevitably watered down the revolutionary wishes and aspirations of the Kenyan masses to produce the present constitution which when all is said and done is a bourgeoisie constitution.


Why is it a bourgeoisie constitution?


Now, why is the 2010 constitution of Kenya a bourgeoisie constitution despite its progressive prospects? To begin with, it is too long (about 280 pages, The Constitution of Kenya, 2012) and is inaccessible to the majority of Kenyans who are peasants and workers as it remains only in English and hitherto has not been translated into the national language, Kiswahili, or other Kenyan languages and therefore remains the constitution meant to be read, understood and interpreted only by few citizens. The majority of citizens have to depend upon others to read and interpret the constitution for them.


The 2010 constitution is deliberately hard to be read, comprehend and to interpret by ordinary people, even educated ones, even ordinary lawyers and even constitutional lawyers will have different understandings and interpretations and have to depend on the magistrates and judges for interpretations and different judges comprehend and interpret the constitution differently.


It is full of ambiguities and contradictions, it gives rights and limits them at the same time, it provides and negates simultaneously while making parallel and opposing articles that are hard to fathom and interpret (see also Marx).


The Bill of Rights


The Bill of Rights contains a very comprehensive list of human rights. Desirable and progressive as they are, when all is said and done, they are bourgeoisie rights as it is assumed that they are realisable in a class/capitalist system to all citizens. Yet the meaning of freedom, equity, equality, right, justice, and human rights to the capitalist is different from that of the ordinary citizens. The rich and the poor cannot have equal rights and freedoms at the same time. To the capitalist, private property and the system of exploitation of person by person is justified, allowed, and right (Engels, F. ibid.).


True, there cannot be equity and equality between the rich and the poor, the capitalists and the working class, the oppressor and oppressed. In a class society like Kenya, the working class must interpret the concept of equity and equality to mean class equity and equality which ultimately means the abolition of classes, capitalism, and all forms of exploitation and oppression of person by person.


That is why the existence of the 2010 constitution has not stopped few families in Kenya from owning hundreds of thousands of acres of land while millions remain squatters or with hardly any land to eke a living on their own country of birth. Neither has it stopped the system that allows a few persons to own the means of production, banks, large businesses, industries, machines and to use them to mint billions for the few while creating poverty for the majority. Because it is founded in the bourgeoisie constitution that is based upon the capitalist system of exploitation and oppression of person by person and class by class the rich Bill of Rights is realised more on the breach than the observance.


The constitution reflects class struggles


The 2010 constitution exposes the class nature of Kenyan societies and the class struggles thereof. This happened clearly during the said 2005 Bomas constitutional conference where I was actively present. All debates of the articles were struggles between those who represented the wishes and aspirations of the masses and those who represented the ruling capitalist elites. The then bourgeoisie Kibaki government in power sabotaged the Bomas Conference by forcing it to end prematurely. The government and the ruling class feared the imminent triumph of the majority of delegates from the working classes and the grassroots. I was there and witnessed everything.


Interpretation of the constitution


Since the constitution manifests class struggles in Kenya, whichever class controls state power interprets it to serve its own interests. It is for this reason that the Kenya pro-neocolonial capitalism elites in power today have ignored or only paid lip service to the progressive articles of the constitution that expresses the wishes and aspirations of the majority of the people of Kenya. Many a time court orders are ignored or only implemented at the whims of those in power. The majority of Kenyans during the consultative and Bomas Constitution Conference wished a constitution that would be used to establish a socialist system and state in the country. In fact, should a progressive or revolutionary party like CPK capture state power, they could identify certain articles in the constitution and use them to initiate pro-socialist reforms. These include the following:


The Preamble of the 2010 constitution


The preamble clearly articulates the wishes and aspirations of the Kenyan people of remembering their centuries and decades-long history of resistance and struggle from foreign and colonial domination and for freedom and justice, of the heroes and heroines who sacrificed for the liberation of our country. It celebrates national unity while appreciating ethnic and cultural diversity. The preamble also acknowledges the need for citizens to conserve the environment for the benefit of present and future generations. It commits all Kenyans "to nurture and protect the well-being of the individual, the family, communities and the nation". It recognises "the aspirations of all Kenyans for a government based on essential values of human rights, equality, freedom, democracy, social justice and the rule of law." 


The problem is that all this can hardly be realised under the present capitalist system but only after the country is liberated from the class divisions and when socialism is achieved. In the meantime, in the ongoing struggle for progressive reforms, and socialism, we will emphasise the significance of the Preamble and the socialist-oriented articles in the 2010 constitution of Kenya, which examples follow below.


Article 10


Article 10 of the constitution that stipulates the national values and principles of governance that must be referred to in interpreting and implementing the constitution shows that the majority of Kenyans aspire for a socialist Kenya and justify CPK’s existence as a political party that expresses the wishes and aspirations of the majority of Kenyans for their nation: socialism.


The national values and principles of governance include:

a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy, and participation of the people.

b) human dignity, equity, social justice, inclusiveness, equality, human rights, non - discrimination and protection of the marginalised,

c) good governance, integrity, transparency, and accountability, and) sustainable development,


Furthermore, this article binds all State organs, state officers, public officers, and all persons whenever any of them: a) applies or interprets this constitution,b) enacts, applies, or interprets any law; or c) makes or implements public policy decisions.


However, this article is implemented more in the breach than the observance. The present capitalist government and ruling class only pays lip service to the article as to implement it would be to transform Kenya into a socialist-oriented society and state. Anyway, be it as it may, it justifies our struggle for a socialist state and society.


Article 1 1. and 2


Article 1: 1 and 2 states that:

 1. All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this constitution;

d) The people may exercise their sovereign power either directly or through their democratically elected representatives.


All this means that the majority of Kenyans have the constitutional mandate to struggle for and establish the political system of their choice because the choice is vested in them. And the constitution itself shows that the majority of Kenyans desire socialist Kenya. Therefore, the struggle for a socialist Kenya is constitutional.


Article 4:2.


Article 4:2 states that "The Republic of Kenya shall be a multiparty democratic state founded on the national values and principles referred to in Article 10". We invoked this article when in 2019 we changed the name of our party from the Social Democratic Party of Kenya (SDP) to the Communist Party of Kenya (CPK). A rogue Registrar of Political Parties had attempted to refuse to register the name of our party citing her anti-communist sentiments not understanding or refusing to understand that in fact, the spirit of the constitution is the desire of the majority of Kenyans for political parties with the ideology of socialism. Our members were forced to demonstrate to win our constitutional right to our rightful name: Communist Party of Kenya (CPK).


Article 7 on languages


Article 7 of the constitution empowers the Kenyan patriots and masses of workers and peasants through language. It states:


7 1. The national language of the Republic is Kiswahili.


7.2. The official languages of the Republic are Kiswahili and English;


3. The state shall:


a) promote and protect the diversity of language of the people of Kenya, and

b) promote the development and use of indigenous languages, Kenya Sign language, Braille and other communication forms and technologies accessible to persons with disabilities.


Unfortunately, the state in power today has hardly implemented this article concerning language. Despite Kiswahili being the national language of Kenya, the language of national unity, and the lingua franca of Eastern and Central Africa, the 2010 constitution has not been translated into Kiswahili and all the national laws are available only in English. Although Kiswahili is used in parliament, all parliament documents are available only in English as most government official documents. The most important speeches of the President during national days are made in English. Hardly any efforts have been made by the government or education system to develop and promote other indigenous languages of Kenya. All this shows that the neocolonial capitalists of Kenya are not willing to empower the Kenyan masses in spite of their wishes expressed in the constitution. Neither are they, progressive nationalists.


Article 8: on religion


Article 8 states, "There shall be no state religion". This is a progressive article as it helps to avoid inter-religious conflicts and gives room for freedom of conscience.


Article 26 on the right to life


Article 26: Every person has the right to life. Life is a fundamental human right that must be respected and protected at all costs. The ultimate goal of all revolutionary struggles is to realise every individual's right to life. So the state and society must utilise the natural and all available resources to ensure the realisation of the right to life to all. To allow only a few individuals to control the economy and resources of the country while the majority are currently condemned to the life of poverty, slums, want and suffering, is to violate article 26. The capitalist system is the basis of the violation of the fundamental human right, the right to life because it is based on the system of exploitation and oppression of person by person. The struggle against capitalism and for socialism is the struggle for the right to life for all citizens.


Article 43 on economic and social rights


To realise the right to life, the same constitution in article 43 - just as the CPK manifesto, constitution, and other documents - pinpoints the basic economic and social rights that must be realised to ensure the implementation of article 26:


1. Every person has the right to: 


a) the highest attainable standard of health, which includes the right to healthcare services, including reproductive healthcare,

b) accessible and adequate housing, and reasonable standard of sanitation,

c) to be free from hunger, and to have adequate food of acceptable quality,

d) to clean and safe water in adequate quantities,

e) to social security, and f) education.


Furthermore, article 43.2. states that "A person shall not be denied emergency medical treatment, and article 43.3.  states that "the state shall provide adequate social security to persons who are unable to support themselves and their dependants".


It is clear that the neocolonial capitalist system that is the mother of inequality, corruption, economic mismanagement, and exploitation of person by person and that is privatising every aspect of the economy every day has been unable and will not be able to realise economic and social rights outlined in this article. Privatisation of social services, including health, housing, and educational services is a violation of this article. In Kenya today the poor are condemned to premature deaths because they cannot access medical care or afford nutritious food or simply die of hunger, slum life, and incessant exposure to an unhealthy environment.


The Kenyan workers, peasants, and all progressive and revolutionary forces must, therefore, unite and struggle to overthrow the capitalist system to establish a socialist society and state to realise the constitutional economic and social rights. For the bourgeoisie will not provide them these rights on a silver platter.


On the land issue


Land is the most important resource of the country. All natural resources and cultures thereof are based on land. That is why land access and rights have always been contested and have been the basis of class struggles and social revolutions. The struggle for independence from colonialism in Kenya was also the struggle for land, thus the Land and Freedom Army (Mau Mau).


Since the land problem was not solved after independence but instead escalated, land has always been behind the myriad conflicts and class struggles in the country (Odinga, ibid.). Neo-colonial capitalism and the growth of the Kenyan bourgeoisie class and the creation of the large class of the poor rural and urban classes is the product of the primitive accumulation of land and land resources accompanied by rampant state-sanctioned corruption and land grabbing.


Chapter five of the 2010 constitution addresses the land question. Although it contains populist articles that seem to empower the masses in relation to land, they are actually bourgeoisie gimmicks that compromise the revolutionary wishes and aspirations - that were expressed by popular masses- in favour of private ownership of land. The interpretation and implementation of the articles, like the constitution, also depend on which class controls state power. As it is the capitalist and procapitalist elites that control state power in Kenya today, the chapter on land in the constitution - despite its populist pronouncements - has been interpreted to perpetuate and to entrench, through the legislation arising from it, private ownership of land and land resources - rather than land reforms that empower the people and communities in the control and use of their land and land resources 


Article 60 (1) states that "Land in Kenya shall be held, used and managed in a manner that is equitable, and in accordance with the following principles:

a) Equitable access to land;

b) security of land rights;

c) sustainable and productive management of land resources; 

d) transparent and cost-effective administration of land;

e) sound conservation and protection of ecologically sensitive areas;

f) elimination of gender discrimination in law, customs, and practice related to land and property in land; and

g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this constitution.


there would have been progressive land reforms that would have brought the equitable distribution of land stated in this article if the above principles were implemented. But today Kenya is divided into classes of the few rich landowners and the majority poor peasants and landless. And what is "equitable" or fair to the rich is not "equitable" or fair to the poor. The status quo of privatisation of land that favours the rich continues and escalates. In the capitalist system imposed upon Kenyans by the ruling class that control political and state power, it is considered equitable for few local and foreigners to own hundreds of thousands of acres of land while millions have little or hardly any land to eke a living on or are landless or squatters. Those who do not till land or need it for their livelihoods own it and those who till land and need it for their livelihoods are denied access to it. This capitalist land tenure system which is the mother of rural and urban slums and poverty is considered just and fair by the Kenyan capitalist ruling class that is in power today. The 2010 constitution, therefore, has not solved the land problem in favour of the peasants and masses of Kenya.


Article 61 states that, (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and individuals."

But Kenya is a nation divided into classes, of the few rich and that of the majority poor, the exploiters and the exploited, the capitalist on the one hand, and the peasants, workers, and working-class on the other hand. In fact, land in Kenya belongs to individuals and families who either own thousands of acres or only small pieces hardly enough to eke a living, but all have private titles to their lands or claim the pieces of privatised lands. The talk that "all land in Kenya belongs to the people of Kenya collectively as a nation..." is a wish of the majority of Kenyans but that can only be realised in a socialist Kenya that must be struggled for. 


(2) Land in Kenya is classified as public, community or private. Despite the existence of this article, private ownership of land is not only more protected by the constitution and laws emerging from it than community or public land. Laws made by parliamentarians composed of procapitalist elites, not to speak of pieces of papers called title deeds, continue to be used to grab, legalise and protect private lands irrespective of how they were or are acquired by individuals or groups of individuals. What is referred to as public or community land is increasingly privatised despite the existence of institutions created by the constitution to protect the land.


Land tenure is how land is owned and used. The capitalist land tenure system puts more emphasis on how land is owned (title deeds) rather than how land is used. This encourages and protects land speculation creating large parcels of idle land owned by individuals displaying title deeds but not putting the lands in productive use. Yet millions of Kenyans need the land for productive use but cannot access it. Furthermore, the capitalist land tenure impedes the implementation of government development plans such as infrastructure projects of roads, dams, water, housing, research, public utilities, eradication of slums, etc. as the government has hardly any land and has to keep on compensating individuals when it needs the land. Private land ownership in urban areas is the root cause of the escalating growth of unplanned settlements or slums in Kenyan urban areas. The 2010 constitution does not provide for the road map towards the elimination of slums and conflicts over land and land resources remain part and parcel of everyday life in Kenya. The constitution actually documents and summarises the class struggles manifested in the land tenure it describes.


Article 174 on the objects of devolution


The 2010 constitution is a bourgeoisie constitution that promises so many good things that however are neither interpreted in favour of the majority of Kenyans nor implemented for the freedom and liberation of the oppressed and exploited. It pretends to be for the good of all Kenyans, yet it is full of contradictions at the same time that favor private property and the status quo of capitalism.


Communists do not reject progressive reforms that improve the living conditions of the working class and the whole society. Rather we are against the reduction of the reforms to be the end in themselves. That is why even while struggling to overthrow capitalism in Kenya and replace it with a socialist system and state, we shall search for and utilise the progressive articles in the constitution to demand the progressive reforms therein and to advanced the path towards socialism.


Chapter ten of the 2010 constitution is one of the greatest progressive reforms of governance in the country. 


Article 174 points out the objects of the devolution of government which are:


a) to promote democratic and accountable exercise of power, 

b) to foster national unity by recognizing diversity,

c) to give powers of self-governance to the people and enhance the participation of the people in the exercise of the power of the state and in making decisions affecting them,

d) to recognise the right of communities to manage their affairs and further their development,

e) to promote and protect the interests of minorities and marginalised communities,

f) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya,

g) to ensure equitable sharing of national and local resources throughout Kenya,

h) to facilitate the decentralization of State organs, their functions and services, from the capital of Kenya, and,

i) enhance checks and balances and the separation of powers.


Devolution has been implemented for about eight (is it 8 or 10) years now. There are now 47 county governments, 47 county assemblies and 47 county public service boards that are in charge of recruiting and employing civil servants of the counties. Besides, there is the Senate and elected Senetors whose major mandate is to represent their counties in the Senate parliament and to deal with constitutional matters of devolution, including representation, approval, and allocation of budgets of counties, oversight, and legislation.


The governments and public services are closer to the people at the grassroots than ever before. Thanks also to the implementation of devolution, there is greater participation of the citizens in the day-to-day affairs of the government that affect them than before the existence and implementation of the 2010 constitution. Citizens more and more participate in the budget-making process and are involved in overseeing the implementation of government projects including prioritising their needs. Thus, citizens are increasingly being aware of their rights to demand services and accountability from their governments.


Although delays in the flow of funds from the national treasury to the county governments are often experienced - thus disrupting the implementation of development plans of the county governments - at least the county governments do receive more than fifteen percent of the national budget due to them every year. This means that billions of shillings circulate in the rural areas annually, which in turn stimulate local economies and rural development. In fact, the impact of devolution to rural development whether to infrastructure, agriculture, or educational, sports, water, and health services are observed throughout the country, the extent of which differs from county to county. More people are employed in rural areas than ever before. The rural areas are breathing life than ever before.


The head of counties are Governors with their cabinets and civil servants. Devolution has produced more leaders with the practice of running governments than ever before. This adds value to the quantity and quality of leadership in the country in general as more and more people are involved in leadership.


The existence of 47 county assemblies adds to the development of democratic culture at the grassroots.


Challenges of devolution


The objects of devolution quoted above are desirable, if only they were implemented effectively. But the tragedy of the 2010 constitution is that it assumes that progressive reforms such as devolution could be implemented sustainably under the capitalist system. Capitalism with its inherent contradictions of inequality, corruption, greed, marginalisation of the poor, tribalism, and nepotism has been devolved to the counties.


Just like the members of the national parliaments, the members of the county assemblies who receive exorbitant salaries and emoluments are also notorious for fighting for their interests and privileges rather than those of the masses who elected them. The wage bill is huge and is escalated by among others, the too big salaries and allowances of the elected elites and top civil servants, leaving very little for development projects.


As explained in article 174 (e), one of the objects of devolution is to foster national cohesion by protecting the interests of the marginalised and minority persons and communities in the counties. Yet, most counties hitherto employ only members of their dominant ethnic groups in the counties, and thus escalating the problem of tribalism.


But the major problem of devolution is that land and land resources are hardly devolved and remain under the control of the national government. Yet, the single most important demand of various Kenyan ethnic groups that brought about devolution was the right of communities to access, manage, conserve and accrue direct and indirect benefits from their resources.


However, it is the national government that has greater control of land and land resources through the ministries of Land and that of Mining and Petroleum via their officers in the counties. The relevant county government departments and officers have hardly any powers in this regard compared to the national officers and their ministers in Nairobi. As a consequence, corruption involving land and land resources that is notorious in the ministry of lands and mining in Nairobi has been devolved to the counties. 


Local communities are still alienated from their lands and land resources while the problems of land and land resources continue to escalate. National land officers who are connected with the ministries of land and mining in Nairobi are in the counties to enrich themselves through corruption rather than serving the local people or solving their problems. The dominant power of the national government over the land and land resources of the counties is a great impediment to land reforms in favour of peasants, the poor and the majority of citizens of Kenya. Devolved governments should call for the constitution to be amended to allow complete devolution of land and land resources to empower the county governments and communities to be in charge of their most important resource. But the BBI report that is being forced upon Kenyans by the government of Uhuru Kenyatta and Raila Odinga deliberately ignore the above facts and instead opt to perpetuate the status quo of injustices over land and land resources.




The state is a machine of oppression of one class by another while the constitution is part and parcel of its coercive instruments. In Kenya, a state is a machine of the neo-colonial capitalist class of exploiting and oppressing the class of the majority composed of workers, peasants, and the working class in general. The constitution is also part of the coercive system of the state of performing a definite role for the exploiters and oppressors in this regard.


This ultimately means that it is the class that controls political and economic power that interprets and implements the constitution to maintain and perpetuate its rule over other classes. The working class and other popular forces must therefore struggle to capture and control state power to create and impose its constitution that is for its class interests and that of the poor, exploited, and oppressed.


In the meantime, it is important to note that the 2010 constitution contains many progressive articles that could be utilised to enhance progressive reforms that could improve the welfare of the masses and even charter the road towards social progress and socialism.


That is why CPK joins those who are opposed to the reactionary BBI report that is being forced upon Kenyans by Uhuru Kenyatta, Raila Odinga, and their sycophants and collaborators. There is the urgent need to implement the progressive articles contained in the 2010 constitution before organising its genuine and participatory review and amendment.




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